While the current Ebola outbreak is a natural epidemic, the idea that the virus could be used as a bioterrorist threat has been considered. Accordingly, the potential for obtaining Department of Homeland Security (DHS) Support Anti-terrorism by Fostering Effective Technologies Act of 2002 (SAFETY Act) protection for products or services related to fighting the Ebola virus is not completely far-fetched.
As background, the SAFETY Act was established to facilitate the development and use of effective anti-terrorism products and services. The SAFETY Act creates systems of risk and litigation management by providing liability protections for manufacturers and sellers of qualified anti-terrorism technologies (QATT) that could save lives. Specifically, sellers of QATT are granted limited liability for third-party claims arising out of the deployment of the QATT with respect to acts of terrorism. The maximum liability is determined by DHS on an applicant-by-applicant basis based on information contained in the application, and the seller is required to maintain liability insurance at that level.
Although the SAFETY Act may seem limited in scope, it applies to comprehensive terrorism prevention, response, and mitigation, and has covered vaccines and screening technology in the past. For example, in 2006, SAFETY Act designation and certification was given to the developer of a vaccine to prevent the symptoms associated with infection with anthrax. That same year, the manufacturer of a sterile antibody product that can be used for the treatment of adverse reactions to the smallpox vaccine, or other uses relating to exposure to the smallpox virus, received SAFETY Act protection. Additionally, biological screening kits for multiple bioterrorism agents have been covered by the SAFETY Act.
In the event DHS would offer SAFETY Act protection to businesses developing new medical treatments and interventions to treat and contain the Ebola virus, this protection does not eliminate all risks and uncertainties for developers. SAFETY Act coverage only applies to claims stemming from designated acts of terrorism, and does not protect against non-terrorism related risks. Since there is also a risk of contracting Ebola outside of terrorist events, claims stemming from these incidents would be outside the scope of SAFETY Act protection.